Monthly Archives: July 2013

We are delighted to welcome this blog post from Dr Pádraig McAuliffe, Lecturer in Law at the University of Dundee, and incoming Senior Lecturer at the School of Law and Social Justice, University of Liverpool. Pádraig completed his PhD at UCC under the supervision of Prof Siobhán Mullally, on post conflict reconstruction in Timor Leste (East Timor), focusing in particular on the Special Panels for Serious Crimes – a hybrid transitional justice mechanism. Pádraig’s research was supported by an Irish Research Council Government of Ireland PhD scholarship. While completing his PhD at UCC, Pádraig undertook fieldwork in Timor Leste and was also a visiting fellow at UCLA, School of Law. Prior to taking up a lectureship at the University of Dundee, Pádraig completed a traineeship at the Department of Foreign Affairs, Legal Division.

Five years ago I went on field research to Timor-Leste, the focus of my PhD, to examine the impact of the trials of crimes from the period of independence in 1999 on the on-going process of rebuilding the national justice system. I arranged a series of interviews with local people, judges, and figures from the plethora of UN and multilateral agencies involved in these areas.

What struck me in so doing was that people I would interview in relation to prosecutions for crimes against humanity had little or no idea what other interviewees concerned with justice sector reform were doing, despite a general belief in scholarship that the two areas would go hand in hand. I noted this surprising phenomenon parenthetically in my thesis, forgot about it completely, but when I began to think about possible areas of exploration for a book, I thought it would be a fertile field for examination.

What I discovered in writing the book was that this problem of the left hand not knowing what the right was doing in East Timor was being replicated in many other peace-building environments – DR Congo, Sierra Leone, Bosnia, Kosovo, Cambodia. Transitional justice is assumed to conduce to rebuilding the rule of law in even the most critical scholarship in the field, but mutually beneficial symbiosis is more apparent on paper than on the ground.

Concern has also been expressed that it is often the same small pool of talent’ that will undertake both tasks and that the burden of external assistance for dealing with past human rights abuses will fall not on the international justice community, but rather the traditional rule-of-law development organizations on account of their larger network of international organizations, aid agencies, and other donor and implementing bodies. While transitional justice has sometimes stimulated beneficial reform, it can also have the opposite effect – in Kenya, justice NGOs began to give up on campaigns to use a national tribunal to pursue justice for post-election violence when the use of the ICC appeared more immediately feasible. Fear has been expressed that activities (such as transitional justice) that are popular and well-funded may be ‘cherrypicked’ to the detriment of strengthening the justice sector as a whole.

International criminal justice tends to strip national judiciaries of resources and staff, while at the other end of the spectrum the use of indigenous or traditional forms of justice to reckon with localised human rights abuses has consistently been isolated from on-going process of integrating these informal mechanisms into the state justice system.

One explanation my book identifies for this gap is the professional balkanization that typically afflicts rule of law reconstruction missions where different experts and agencies with divergent mandates and different institutional dynamics concentrate intensely on their core competencies, producing hyperfocused approaches that fail to add up to an integrated and effective whole. The presumption appears to be that there will be a complementary overlap between transitional justice and rule of law reconstruction, but given the failure to think through their inter-relation, the book identifies a significant risk of ‘underlap’ where incoherence results from the cacophony of projects.

However, professional balkanization is only the organizational form of a wider problem, namely that activists and theorists in both communities have fundamentally different conceptions of what the rule of law means and requires in post-conflict and post-authoritarian transitions. As this book examines, neither group may not have much knowledge of key debates in the opposite field.

My book therefore attempts to explain how those involved in trials, truth commissions and lustration view the rule of law (a very value laden conception focussed primarily on human rights and norms with little attention given to institutions or the cultural commitments on the parts of ruler and ruled to legality) differently to those attempting to rebuild courts, police systems and prisons (a more technocratic, culture-driven view which incorporates human rights but avoids conflating the two). In so doing, it examines differences of opinion on criminal trial (for the former, it is a means of political signalling where fair trial values are contingent, for the latter it is an example to establish scrupulously fair standards), international criminal law (for the former, international trials are often a superior option because they reinforce the global values of norms, for the latter they risk de-legitimising or infantilising national court systems) and indigenous justice (seen in transitional justice as a bastion of resistance to the state, seen in justice sector reform as a key complement or gap-filler for the nascent state justice system).

Arguing that the often Messianic transitional justice community would do well to heed the limitations of its mechanisms and the radically imperfect conditions to which they deploy, the book recommends policy-makers to re-balance the compromises inherent in transitional justice mechanisms against the foundational demands of rule of law reconstruction.

Prioritizing achievable and pragmatic justice sector reform objectives over the more profound but potentially unobtainable political ends that dominate transitional justice theory, the book recommends that a more clear-eyed vision of costs and benefits, risks and opportunities is required when decisions are made to employ, circumvent or complement the transitional state’s institutions of justice by internationalised trials, truth commissions and other sui generis processes.

There is nothing that complicated about the Edward Snowden case, but it does involve several overlapping areas of law, international and domestic, and commentators seem to assume there is some sort of accepted hierarchy. The starting point is that he is accused of violating some US domestic criminal law by revealing the activities of the US security service’s surveillance operations as a consequence of prior employment for a contractor to the NSA. When his disclosures came to light, he was in the Hong Kong Special Administrative Region. It is at this point that the complexity of the overlapping legal regimes first generated confusion. The allegation of criminal activity prompted the United States to seek his extradition; Edward Snowden started to explore the possibility of seeking asylum to avoid prosecution in the United States. The processes were parallel, but distinct. The easiest aspect of the confusion to remedy is that relating to asylum. International law does not grant a right to asylum, but at best Article 14 of the Universal Declaration of Human Rights (UDHR) — not legally binding in and of itself — provides for a right to seek and enjoy asylum. Indeed, while much of the UDHR was incorporated in the legally binding International Covenants on Economic, Social and Cultural Rights, and Civil and Political Rights, Article 14 made it into neither, so only if it has achieved customary status can one find a binding obligation to allow him to even seek asylum. Asylum itself is in the grant of the state and depends on domestic laws and procedures. There are multiple extradition aspects to this case. First, extradition generally requires some form of agreement between the requesting and requested states, initially between the US and the HKSAR and now Russia. There is an extradition arrangement with HKSAR in force since 1998, but none with Russia. Moreover, if he were to be offered asylum, there would be nothing to stop the US filing a request with that state if there was some form of agreement between them. Extradition arrangements are specific to each agreement, but there are some generic concepts, such as extradition crimes, double criminality, and the political offence exception. In Edward Snowden’s case, those three elements raise some particular issues. It is beyond the scope of this piece to explore the domestic US law he might have violated, but the facts and offences would have to be criminalized under the law of the requested state as much as the US before extradition could be permitted. Moreover, extradition treaties generally exempt from surrender those accused of offences of a political character. Courts in different countries have interpreted the political offence in different ways, but it is never enough to have a political motivation. Further, while espionage (if that is indeed what Edward Snowden is alleged to have committed) may seem the archetypal political offence, it has received a mixed reception in the courts depending in part, according to some case law, on whether he might have gained any financial benefits. Finally, more modern extradition treaties often include human rights guarantees such that surrender cannot be granted to the requesting state, the US, if the alleged fugitive’s rights would be violated. While the extremes of the Bush regime’s activities in Guantànamo are not something Edward Snowden need fear, the requested state might feel the need to impose conditions on the type and maximum length of any prison sentence following a conviction. The United States does not allow individuals to petition for international review of its domestic decisions, so the onus is on the requested state to establish such protection in advance (see Judge v Canada). Extradition and deportation are two different processes, although both remove an individual from a state. In the latter case, however, the domestic immigration law simply requires a non-national to depart and there need be no required destination, except that only the state of nationality has an obligation to receive anyone in normal circumstances and Edward Snowden is still a US national. One area of law that does affect deportation is international refugee law under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Refugees cannot be subjected to refoulement to the frontiers of a territory where their life or freedom would be threatened. However, to be a refugee, the applicant has to have a well-founded fear of persecution for one of five grounds, including political opinion, and Edward Snowden does not fear persecution, rather prosecution. The law itself is not persecutory and is not being applied only because he is in political disagreement with the surveillance procedures. Furthermore, Article 1F of the 1951 Convention excludes from refugee status those with respect to whom there are serious reasons for considering that they have committed a serious non-political crime, but that would just rehearse the earlier debates on political offences. Finally, one comes to the issue of asylum. Asylum is in the grant of the state. Ordinarily one seeks it on the territory of the relevant country, although states in Central and South America accept applications in their embassies. The Julian Assange case shows that Ecuador, at least, applies that outside the region. So far, Nicaragua, Venezuela, and Bolivia have offered Edward Snowden asylum if he can get there from Moscow. States are at liberty to let anyone they please in to their territory. It can be presumed that if they grant him asylum, they would not extradite him to the US if they received a request; all three states have extradition arrangements with the US. However, all three are democracies and a subsequent government may not feel obliged to respect that grant. Cesare Battisti had been given asylum in France, but when the Sarkozy regime threatened to send him back to Italy, he ended up fleeing to Brazil where his eventual protection depended on the President, not the courts.

Geoff Gilbert is a Professor and Head of School in the School of Law and Human Rights Centre at the University of Essex. He has been Editor-In-Chief of the International Journal of Refugee Law (Oxford University Press) since 2002. He was founding Director of Studies for the Thematic Refugees and Human Rights Course from 2005-2007 with the UNHCR; Director of the Organization for Security and Co-operation in Europe (OSCE) training program for judges on combating torture in Serbia and Montenegro; and Special Adviser to the Parliamentary Joint Committee on Human Rights on the ‘Treatment of Asylum Seekers, 2006-07’.

The International Journal of Refugee Law serves as an essential tool for all engaged in the protection of refugees and finding solutions to their problems. It regularly provides key information and commentary on today’s critical issues, including: the causes of refugee and related movements, internal displacement, the particular situation of women and refugee children, the human rights dimension, restrictive policies, asylum and determination procedures, populations at risk, and the conditions in different countries.

The release last month of the Law Reform Commission Report on Mandatory Sentences has provided an opportunity to reflect in an informed way on the approach taken in our jurisdiction to sentencing in the Irish criminal courts. In addition, the controversial sentencing judgment delivered by Mr Justice Sheehan in the case of a man convicted of raping his then 14 year old sister-in-law 27 years ago highlights the serious difficulties involved in balancing the range of competing rights and interests in the sentencing process. In particular, the often unseen tensions between victims and the family of offenders are laid bare providing an extremely challenging sentencing decision. Significantly such challenges are a common feature in cases where prison sentences are imposed, yet in the majority of cases in this jurisdiction they are rarely even acknowledged let alone considered explicitly by the sentencing judge.
Sentencing in Ireland has historically been regarded as being within the sole discretion of the court. Indeed to date, there has been considerable resistance by the judiciary to even the most modest of sentencing guidelines. However, this long established position is now under pressure as a variety of reports over the past decade have recommended the adoption of a more guided approach to sentencing. The Law Reform Commission Report on Mandatory Sentencing published last month notes generally that there is no agreement on the aims and principles framing our sentencing process and an “absence of anything remotely approximating to a consensus on who should be sent to prison and why they should be sent there.” Unsurprisingly, therefore the report recommends the development and implementation of appropriate sentencing guidelines.
Generally, when an offender is sentenced, a court can take a variety of matters into consideration. These will include the type of offence committed and any aggravating and mitigating factors. It may also have regard to the accused’s criminal record, the views of the victim, and wider social and policy issues. However, the extent to which incarceration will impact on the defendant’s family and in particular, their children, receives little attention beyond its possible inclusion as a mitigating factor. This is despite the fact that under Article 3 of the UN Convention on the Rights of the Child 1989, to which Ireland is a party since 1992, require that if a decision concerning the child’s primary caregiver is being taken by a court, the best interests of the child need to be balanced against any other relevant factors.
In recent years, the impact of a sentence on the children of an offender as a consideration to be included in the sentencing process has been recognised in a number of jurisdictions, for example in England and Wales. Perhaps the best-known example derives from the landmark decision of the South African Constitutional Court, S v M (2007). This case concerned the conviction of a single mother in whose case the court held that the best interests of children should be considered alongside other elements in the sentencing process. Albie Sachs J. noted the need for a “change in mindset” when dealing with cases where children are affected by the sentencing of a parent. This requires an acknowledgment that while a prison sentence is imposed as punishment for a crime, imprisonment has an impact beyond the offender. This does not mean parents are not sent to prison where such a sentence is appropriate, but rather that the full impact is understood and alternative punishments considered where the rights of children are engaged.
It would appear that the approach of Mr. Justice Sheehan in the Counihan case a few weeks ago included elements which are consistent with the approach adopted in South Africa, given the fact that the Judge took into consideration the hardship likely to be suffered by the defendant’s three children. Evidence of the negative impact of the offender’s imprisonment pending sentence on one of his autistic children was presented indicating the harm that an extended prison sentence would do to the family in the long term. The judge noted that despite the seriousness of the offences and the harm done to the victim, he ultimately concluded that imprisonment would “impose extreme hardship” on the offenders family “particularly on his partner and his son.”
However, it is clear the High Court considered the impact of the sentence on the offenders children as a mitigating factor, something “belonging to the offender”, whereas the S v M approach requires a balancing of competing interests including the best interests of any children to be affected by the imprisonment of a parent. This approach firstly requires that the court be appraised in each case before it of the potential impact of imprisonment on children and families, often termed a family impact statement. This factor must, however, be balanced – considering the impact of a prison sentence on the family of an offender does not mean that s/he should not be imprisoned where a prison sentence is ultimately the appropriate sanction for the crime committed. What it does mean is that on a systematic basis the sentencing court should (1) ascertain whether a convicted person is a primary caregiver, (2) if a custodial sentence is being considered the court should have regard to the possible impact it would have on the children, (3) if a custodial sentence is appropriate and the convicted person is a primary caregiver, the court must, in the words used in S v M “apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated”, and (4) when deciding between a range of possible sentences, the court should be guided by the best interests of the child in deciding which sentence to impose.
The suspended sentence imposed by the court has been greeted, unsurprisingly, with shock by victims support groups. Their concerns reflect not only the significant harm sexual offences inflict on victims but also the on-going failure of the criminal justice system to adequately prosecute such offences. While the final decision in Counihan has left many questioning whether or not justice prevailed in that case, the decision making process engaged in by the Judge is one to be commended. However, the tension between victim and offenders families adversely affected by a sentencing decision can be difficult to resolve, particularly in a system like ours where there are few alternatives to prison, but it should not continue to be ignored as is the current practice. If, as the LRC recommends, clear sentencing guidance is adopted in our jurisdiction it should include a process whereby the impact of a sentence upon the children and families of offenders are taken into consideration on a systematic basis alongside the interests of the victim.